Ashley v. The City of New York et al

Filing 133

MEMORANDUM & ORDER, For the foregoing reasons, the court DENIES Plaintiffs motion under Federal Rule of Civil Procedure 50 for judgment as a matter of law (Dkt. 126). So Ordered by Judge Nicholas G. Garaufis on 7/29/2019. (Lee, Tiffeny)

P/JF
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X
DUSHANNE ASHLEY

Plaintiff,
MEMORANDUM & ORDER

-against14-CV-5559(NGG)
(SMG)
DETECTIVE MIKE CIVIL, shield #2114,

Defendant.
-X

NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiff Dushanne Ashley brought this action under 42 U.S.C. § 1983 against Defendant

Detective Mike Civil ofthe New York City Police Department alleging that he was denied his
right to a fair trial. (See Am. Joint Pretrial Order("JTPO")(Dkt. 108) at 2.) The case proceeded
to trial, during which Plaintiff asserted a claim of denial of his right to a fair trial. (Id.) At the
close ofthe defense case, the court denied Plaintiff's motion for a directed verdict. (See Trial Tr.

(undocketed) at 397:25.) On April 3,2019, after three days oftrial, including deliberations, the
jury rendered a verdict in favor of Defendant.(See Jury Verdict Sheet(Dkt. 121).)

Plaintiff now renews his motion for judgment as a matter oflaw pursuant to Federal Rule

of Civil Procedure 50. (See Not, ofR. 50(b) Mot.(Dkt. 126); PI. Mem.in Supp. of R. 50(b)
Mot.("Mem.")(Dkt. 126); Aff. in Supp. of R. 50(b) Mot.(Dkt. 127).) He asks the court to enter
a directed verdict on the question ofliability and requests a new trial "solely on the issue of

damages."^ (See Mem. at 11.) Defendant opposes Plaintiffs motion.(See Opp'n (Dkt. 130).)
For the reasons set forth below. Plaintiffs motion is DENIED.

'
Although Plaintiff"requests a new trial solely on the issue of damages"(Mem. at 11; Reply at 2), he states that his
motion is made under Federal Rule ofCivil Procedure 50, his briefs do not mention Federal Rule of Civil Procedure

59, which concerns motions for a new trial, and he sets forth no independent arguments as to why he is entitled to a
1

I.

BACKGROUND

The court assumes familiarity with the background ofthis case. See generally Ashley v.

Civil. No. 14-CV-5559(NGG),2019 WL 1441124(E.D.N.Y. Apr. 1,2019)(addressing motions
inlimineh Ashley v. City of New York. No. 14-CV-5559(NGG)
(SMG),2017 WL 9487192
(E.D.N.Y. Apr. 17,2017)(recommending that the court grant in part and deny in part
Defendants' motion for summaryjudgment and deny Plaintiffs motion for summary judgment),
report & recommendation adopted. 2017 WL 2972145(E.D.N.Y. July 12, 2017), reconsideration

denied. 2018 WL 6419951 (E.D.N.Y. Dec. 6,2018). Only those facts necessary for disposition
ofthe instant motion are set forth here.

On September 22, 2014,Plaintiff commenced this action.(Compl.(Dkt. 1).) Plaintiff
brought multiple claims imder 42 U.S.C. § 1983 stemming from his April 19,2013 arrest at 125
East 18th Street, Apartment 51, Brookljm, New York (the "Apartment")and subsequent
prosecution for criminal possession of marijuana. This Apartment was owned by a man named
Charles Patrick. (Trial Tr. at 238:1-12.) Plaintiff lived in a room that he rented from Patrick

starting in January 2012. (Trial Tr. at 237:23-25, 238:24-239:5.) Before the April 19,2013
arrest. Plaintiff had been arrested twice inside the Apartment for criminal possession of
marijuana. fSee Trial Tr. at 246:21-247:4.) Defendant Civil was present for both prior arrests.
(See id. 305:12-14: 376:22-377:3.) Plaintiff claims, however, that by April 19,2013, he was no
longer living at the Apartment, and was instead living at his girlfriend's apartment. (Trial Tr. at
250:23-251:1.)

new trial on damages. Accordingly,the court does not treat Plaintiffs motion as one for a new trial under Federal
Rule of Civil Procedure 59.

On April 19,2013, Defendant Civil executed a search warrant at the Apartment. Csee
id. at 327:2-3.) During his search. Defendant Civil foimd 18 small plastic bags of marijuana in
the living room ofthe Apartment. CSee id, at 323:4-19, 325:5-7.) Several ofPlaintiffs
possessions, including an air mattress bed, dresser, clothing, weights, a photograph of him with a
woman, and a cat, were in the Apartment. CSee id. at 249:2-250:1, 322:9-14, 333:24-334:7.)

Defendant also stated that he knew the room where the marijuana was found to be Plaintiffs
bedroom based on "[his] investigation and previous search warrants." (Id,at 333:15-16.) At the

time the search warrant was executed, there was an individual sleeping on the floor in a sleeping
bag next to Plaintiffs bed. (Id at 334:3-4.)

Plaintiff was not present at the Apartment when the search was executed early in the
morning on April 19,2013, but he arrived shortly thereafter while officers were still in the
Apartment. (See id. at 326:15-19.) He was placed under arrest, along with Charles Patrick and

Jose Carlos,the individual who had been sleeping on the floor. (See id. at 325:14-15.)

The criminal complaint signed by Defendant on April 19, 2013 (the "Original
Complaint") alleged that Plaintiff committed the offenses of Criminal Possession of Marijuana in

the Fourth Degree, Criminal Possession of Marijuana in the Fifth Degree, and Unlawful
Possession of Marijuana. (See PX 1; DX A; Trial Tr. at 132:11-14.) A person is guilty of
criminal possession of marijuana in the fourth degree when he "knowingly and unlawfully
possesses" more than two oimces of marijuana. N.Y. Penal Law § 221.15. A person is guilty of
criminal possession of marijuana in the fifth degree when he "knowingly and unlawfully
possesses" more than 25 grams of marijuana. Id,§ 221.10. Finally, a person is guilty ofthe
lesser charge of unlawful possession of marijuana when he "knowingly and unlawfully

possesses" marijuana. Id,§ 221.05. To "possess" marijuana means to "have physical possession

or otherwise exercise dominion or control" over the marijuana. Id. § 10.00(8). Knowing
possession of marijuana(or other contraband) can be inferred where an individual has "dominion

or control" over the area where the drugs are found. Chalmers v. Mitchell. 73 F.Sd 1262,1272
(2d Cir. 1996)(discussing N.Y. Penal Law § 10.00(8)).
The Original Complaint stated that Detective Civil "observed [Plaintiff and Jose Carlos]
in possession of approximately two ounces of marihuana, in that the informant did recover said

quantity of marihu^a from the floor inside a room in which [Plaintiff and Jose Carlos] were
sitting." (PX 1;
^Trial Tr. at 140:4-8.) The prosecution filed a superseding information (the
"Superseding Complaint") dated April 30,2014 that differed from the Original Complaint only
in its statement that Plaintiff arrived after Defendant:

"[Detective Civil] observed [Plaintiff and Jose Carlos] in possession
ofapproximately two ounces of marihuana,in that [Detective Civil]
entered said location and observed defendant Jose Carlos on the

floor and defendant Dushanne Ashley did enter said location shortly
thereafter and state in sum and substance, see this is what happens
when you let strange people into our apartment, and [Detective
Civil] did recover said quantity of marihuana from the floor."
(DX A;
^Trial Tr. at 139:23-140:8,102:19-20,141:4-6.) Plaintiff appeared in court
approximately four times in connection only with this arrest, and eleven times in connection with

this arrest and others. [See Trial Tr. at 232:4-8,268:18-20.)
The state courtjudge ultimately dismissed the Superseding Complaint as "facially
insufficient." (Trial Tr. at 124:17(Chad LaVeglia testifying).) She stated: "Just because it is
your home, you cannot control what people bring into your home,and obviously they said they
see somebody with the stuff and he comes in subsequently." (Id. at 124:13-16(Chad LaVeglia
testifying).)

II.

LEGAL STANDARD

Federal Rule of Civil Procedure 50 "imposes a heavy burden on a movant, who will be

awarded judgment as a matter oflaw only when 'a party has been fully heard on an issue during
a jury trial and the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.'" Cash v. Ctv. of Erie. 654 F.3d 324,333(2d
Cir. 2011)(quoting Fed. R. Civ. P. 50(a)(1)). "That burden is particularly heavy where... the

jury has deliberated in the case and actually retumed its verdict in favor ofthe nonmovant." Id.
(internal quotation marks and citation omitted). "In such circumstances, a court may set aside
the verdict only ifthere exists such a complete absence of evidence supporting the verdict that
the jury's findings could only have been the result of sheer surmise and conjecture, or the
evidence in favor ofthe movant is so overwhelming that reasonable and fair minded persons

could not arrive at a verdict against it." Id (intemal quotation marks and citation omitted). "[I]n
entertaining a motion for judgment as a matter oflaw,the court should review all ofthe evidence
in the record. In doing so, however,the court must draw all reasonable inferences in favor ofthe
nonmoving party, and it may not make credibility determinations or weigh the evidence."

Reeves v. Sanderson Plumbing Prods.. Inc.. 530 U.S. 133,150(2000)(citations omitted).
III.

DISCUSSION

Claims of denial ofthe right to a fair trial "based on fabrication ofinformation" arise in
cases where "(1)[an] investigating official(2)fabricates information(3)that is likely to

influence a jury's verdict,(4)forwards that information to prosecutors, mid(5)the plaintiff
suffers a deprivation of life, liberty, or property as a result." Gamett v. Undercover Officer
C0039. 838 F.3d 265,279(2d Cir. 2016)(emphasis added)(describing the standard established
in Ricciuti v. N.Y.C. Transit Auth.. 124 F.3d 123(2d Cir. 1997)). As this court noted in Ashlev.

2018 WL 6419951, at *3,"[tjhe manufacturing offalse evidence 'in and of itself... does not

impair anyone's liberty, and therefore does not impair anyone's constitutional right.'" Id.
(quoting Zahrey v. Coffey. 221 F.3d 342, 348(2d Ctr. 2000)(citation and quotation marks
omitted)).

Although Plaintiff argues that he proved all necessary elements of his denial of a fair trial
claim (see Mem. at 1), the core ofthe dispute between the parties is over the third and fifth
elements ofthe denial offair trial claim as framed by the Second Circuit in Gamett. (See Mem.;

Opp'n at 1-7.) First, the parties dispute whether the jury could have found that the false
statement contained in the original criminal complaint—^that Plaintiff was already sitting in the
room where the marijuana was found at the time the search was executed—constituted evidence
"likely to influence ajury." Second,the parties dispute whether there was sufficient evidence
from which the jury could have concluded that Plaintiff suffered a deprivation ofliberty "as a
result" ofthat false information.^
A.

Fabrication of Evidence

"Whether [] fabricated evidence is likely to influence ajury's decision can be satisfied by

showing that the fabricated evidence was material to the prosecutor's case." Hanson v. N.Y.C..
No. 15-CV-1447(MKB),2018 WL 1513632, at *17(E.D.N.Y. Mar. 27,2018)(citing Gamett.

^ The parties also dispute whether, under the Supreme Court's recent decision in McDonoueh v. Smith.Plaintiff
must show that his prosecution ended with a favorable termination. (Opp'n at 1,7-9.) S^ McDonoueh v. Smith.
139 S. Ct. 2149,2158(2019)(holding that a claim "asserting that fabricated evidence was used to pursue a criminal
judgment" accrues when the criminal proceedings against a defendant terminate in his favor); Harper v. Va. Den't of
Taxation. 509 U.S. 86,97(1993)(holding that when the Supreme Court "applies a rule offederal law to the parties
before it, that rule is the controlling interpretation offederal law and must be given full retroactive effect in all cases
still open on direct review and as to all events, regardless of whether such events predate or postdate om
announcement ofthe rule"). Because, as discussed below,the court fmds that the evidence adduced at trial provided
a sufficient basis for a reasonable juiy to find that Plaintifffailed to prove that the false statement made by
Defendant was likely to influence ajury and/or that this statement was not the proximate cause ofPlaintiffs
deprivation ofliberty, the cotirt does not consider the relevance of a favorable termination analysis to his claim.

838 F.3d at 277; Ricciuti, 124 F.3d at 129-30). In Gamett. the Second Circuit indicated that

fabricated evidence is material when it may affect "the prosecutor's decision to pursue charges
rather than to dismiss the complaint without further action" or could influence "the prosecutor's .
.. assessments ofthe strength ofthe case."

Gamett. 838 F.3d at 277.

Plaintiff argues that the evidence here showed that Defendant forwarded fabricated

evidence to a prosecutor—^in the form of a statement that Plaintiff was present in the apartment
where marijuana was found at the time the search warrant was executed—and that this
fabrication was "certainly material." (Mem. at 7.) He argues that "[bjeing seen sitting next to

drugs is potent evidence of dominion and control"(Reply(Dkt. 132) at 3), and contends that
dismissal ofthe Superseding Complaint as facially insufficient shows that the other facts linking
Plaintiffto the bedroom and the marijuana were "not enough for a facially sufficient complaint"
(Mem. at 7).

The court finds, however, that there was a legally sufficient evidentiary basis for a
reasonable jury to conclude that Defendant's false statement was not material to the prosecutor's

case or otherwise likely to influence a jury. For example, during the trial, witnesses testified that
Plaintiff lived in the apartment where the marijuana was found (see Trial Tr. at 56:13(neighbor
stating that Plaintiff"lives in the building")), that PlaintifPs belongings, including his dog and

cat, were present in the room on April 19,2013 (see Trial Tr. 217:15-22,218:12-21,241:16-17,

321:13-322:17), and that Plaintiff paid rent of$80 per week^ (Trial Tr. 251:2-8). Defendant also
testified that he informed an assistant district attomey or paralegal, who was draftiug the criminal

^ Plaintifftestified that he paid this $80 per week to Charles Patrick so that he could keep his cat at the Apartment,
but that he himself was no longer living there. tSee Trial Tr. at 250:18-251:11.) In light ofthe evidence before it,
however, including that Plaintiff went to the Apartment every day to feed his cat and take care of his litter box, the
jury may not have found Plaintiffs explanation—^that the rent was only on behalf of his cat and that he himself had
moved out—credible.

complaints, that he believed Plaintiff was connected to the marijuana found in the Apartment for

multiple reasons:(1)based on the two prior search warrants executed at the Apartment, he
miderstood Plaintiffto live there;(2)Plaintiff made the following statement to Charles Patrick in
front of Defendant:"something like. This is why we don't let strangers into our—^into our
apartment";(3)Plaintiff still had clothes at the Apartment; (4)there was a photograph of
Plaintiff and a woman on the dresser in the Apartment; and(5)Defendant was aware of a 311

complaint made by Charles Patrick to the effect that his roommate, whose description matched
that ofPlaintiff, refused to move out and was selling drugs in the Apartment. ("See Trial Tr. at
312:20-23, 322:9-14,328:19-329:1; 337:15-24.) The jury also heard testimony that the
prosecution filed the Superseding Complaint without the false statement instead of dismissing

the case against Plaintiff. (Id. at 141:14-17,23-25,142:1-4.)
In other words,the jury heard considerable testimony regarding Plaintiff's connection to

the Apartment and the bedroom where the drugs were found. The jury thus had a legally
sufricient basis from which it could reasonably conclude that Defendant's statement that Plaintiff
was already present in the apartment at the time the search warrant was executed was not

material to the prosecution's case and that such statement was not likely to influence ajury.
B.

Causation

Moreover, the evidence adduced at trial provided a sufficient basis from which ajmy
could conclude that Defendant's allegedly false statement did not cause Plaintiffs deprivation of
liberty. See Ashlev. 2018 WL 6419951, at *3 (explaining that "Plaintiff must still show his

deprivation of liberty came 'as a result' ofthe false statement"); see also Gamett. 838 F.3d at
279-80(noting that in fair trial claims based on fabrication ofinformation require a finding that
plaintiff suffers a deprivation oflife, liberty, or property "as a result" offalse statement);

8

Caravalho v. City ofNew York. 732 F. App'x 18,24(2d Cir. 2018)(summary order)(rejecting
fair trial rights claim because ofthe plaintiffs failure to prove detention was a result of
fabricated paperwork); Bridgeforth v. City ofNew York. No. 16-CV-273(WHP),2018 WL
3178221,at *8(S.D.N.Y. June 28,2018)(finding a "triable issue" over whether defendant's

"actions, rather than other processes, that produced" a deprivation ofliberty); Walker v. City of
New York. No. 1 l-CV-314(CBA),2014 WL 12652345, at *9(E.D.N.Y. Sept. 3,2014)("The
causation requirement is only met ifthere is sufficient evidence for ajury to determine that the

fabricated evidence, as opposed to evidence that supported a finding of probable cause, caused
the plaintiffto be deprived of his liberty."); Deskovic v. Citv ofPeekskill. 673 F. Supp. 2d 154,
161 (S.D.N.Y. 2009)("[I]t is common ground that in any Section 1983 case, a 'plaintiff must
prove that the defendant's action was a proximate cause ofthe plaintiffs injury.'")

(quoting Gierlinger v. Gleason. 160 F.3d 858,872(2d Cir. 1998)). "To be a proximate cause,
the misconduct must constitute a substantial factor in bringing about the harm." Nnodimele v.
Derienzo. No. 13-CV-3461 (ARR),2016 WL 337751, at *14(E.D.N.Y. Jan. 27,2016)
(quotation marks omitted)(citing Hydro Investors. Inc. v. Trafalgar Power Inc.. 227 F.3d 8,15
(2d Cir. 2000)).

As explained above,the jury heard considerable evidence regarding Plaintiffs
coimection to the Apartment and the room where the marijuana was found. The jury also heard
evidence to the effect that the prosecution moved forward with the case even after the false

statement was removed from the complaint. tSee Trial Tr. at 141:14-17, 23-25, 142:1-4.) The
court thus finds that the evidence presented at trial formed a legally sufficient basis for a
reasonable jury to find that Defendant's statement that Plaintiff was aheady in the room at the
time the search warrant was executed was not a proximate cause—i.e.."a substantial factor in

bringing about,"^id—any deprivations ofliberty that Plaintiff suffered in connection with his
April 19, 2013 arrest.
* **

In sum,the court finds that there was legally sufficient evidence for the jury to find for

Defendant. Plaintiff has failed to carry his "particularly heavy" burden ofshowing that there was
"such a complete absence of evidence supporting the verdict that the jury's fmdings could only
have been the result ofsheer surmise and conjecture, or [that] the evidence in favor of[Plaintiff]
is so overwhelming that reasonable and fair minded persons could not arrive at a verdict against
it." Cash.654 F.3d at 333 (citation omitted).
IV.

CONCLUSION

For the foregoing reasons, the court DENIES Plaintiffs motion under Federal Rule of
Civil Procedure 50 for judgment as a matter oflaw (Dkt. 126).
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York
July ol? ,2019

United States District Judge

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